THE PRACTICE OF LAW AS A VOCATION
OR CALLING
Timothy W. Floyd*
THE CONCEPT OF CALLING
A
NY discussion of work as a calling or vocation necessarily will
employ religious language and concepts. The very notion of being "called" implies a caller. The idea of calling has deep roots in the
Hebraic tradition. The God of the Bible is a God who speaks to individual persons and calls them to specific tasks. Indeed, throughout
the Bible, God calls particular persons: God called Abram out of the
land of his kindred to go to the land of Canaan;! out of the burning
bush, God called to Moses to go to confront Pharaoh;2 in the year that
King Dzziah died, God called Isaiah from the Temple in Jerusalem;3
on the road to Damascus, God called SaulJPau1.4 Drawing upon this
biblical concept, Christians have traditionally used the terms "calling"
or "vocation" to refer to the work or activity that God desires and
makes known for a person to do.s Christians believe that God calls
particular individuals to do God's will.6
When used in this sense, calling is a peculiarly personal issue. God
"calls" specific individuals for specific purposes? I believe that all
persons have a destiny-and by that I mean they have a unique calling
from God. The work of the theologian and novelist Frederick Buechner has been very helpful to me on these questions.s He emphasizes
* Professor of Law, Texas Tech University School of Law.
1. Genesis 12:1-5. All references to the Bible in this anicle are to the New American Bible (1987).
2. Exodus 3:1 to 4:17.
3. Isaiah 6:1-13.
4. Acts 9:1-19.
5. For what are probably historical reasons, Catholics tend to use the Latin-derived "vocation"; Protestants tend to favor the GermaniclEnglish "calling." I think
the two are entirely synonymous, and I will use the two interchangeably.
6. Despite the roots of the notion of "calling" in the Hebrew Bible, I cannot
speak to the salience of the concept of calling in Judaism. Several Jewish friends have
told me that calling is not a prominent concept in modem Judaism.
7. It may be problematic for modem minds to take literally these "call" experiences. For those who believe in an abstract and impersonal God, "calling" probably
does not make much sense. It makes more sense to think of a personal God, like the
God of the Bible, "calling" to persons than it is for an impersonal or abstract God to
do so. I would note that one of the greatest of all modem minds, the great mathematician and philosopher Blaise Pascal, in recording a conversion experience, viewed his
God as the:
God of Abraham, God of Isaac, God of Jacob.
Not of the philosophers and the scholars.
Blaise Pascal, Pensees: Thoughts on Religion and Other Subjects 285 (\Villiam Fmlayson uotte trans., Washington Square Press 1965) (1670).
8. See Frederick Buechner, Listening to Your Life: Daily Meditations with Frederick Buechner (1992).
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that the same God of the Bible-who brought Israel out of Egypt and
who raised Christ from the tomb-is even now working in the private
histories of each of us. God is not a puppeteer who sets the stage and
works the strings, but is more like the great director of the drama that
is our lives. God
conveys to us somehow from the wings, if we have our eyes, ears,
hearts open and sometimes even if we don't, how we can play those
roles in a way to enrich and ennoble and hallow the whole vast
drama of things including our own small but crucial parts in it. 9
Our task is to discern what that calling is in our own lives, to listen
carefully to what God is doing in our lives. We just might find that
God is present in even "the hardest and most hair-raising [events in
our lives, offering] us the possibility of that new life and healing which
I believe is what salvation is.''lO
This is not to say that discerning God's call is always an easy thing
to do. Not all of us hear a voice coming from a burning bush, are
blinded by a light on the road to Damascus, or even hear a still, small
voice calling in the night. It takes much faith to hear the healing voice
of God in the midst of our everyday lives. Sometimes, even when we
believe we are most attuned, all we perceive is silence. At other
times, listening for God's call in our lives feels like a great struggle.
Perhaps that is why the story of Jacob wrestling all night with the
stranger (who mayor may not have been GOd)l1 has always resonated
powerfully with many of us.
I also do not mean to imply that discerning God's call in our lives is
an individual matter, to be discerned alone, in isolation. Although
God's call is always in one sense personal and unique, Christians are
necessarily a part of the body of Christ. One cannot follow Christ
without being a part of the church. It is one of the responsibilities we
share as members of that body to help each other hear the voice of
God in our lives, and to help each other find or discover our calling.
OCCUPATIONS AS CALLINGS
Discerning and responding to the call of God raises fascinating and
important issues. How a person can discern whether God is calling
him or her to be a lawyer could be the subject of a fascinating paper. I
am not sure, however, that I could write that paper, and in any event
that is not my topic. In this essay I will discuss a different usage of the
word "calling." Certain occupations or work are sometimes referred
to as "callings," in part to distinguish that work or occupation from
others that presumably are not "callings." Most commonly, the term
"vocation" has been used in the church to refer to those who become
9. Id. at 323.
10. Id. at 322.
11. See Genesis 32:23-31.
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priests, monks, or nuns. This is not an exclusively Catholic phenomena; many Protestants also think of "calling" primarily with reference
to the ordained clergy. My grandfather, who was a Methodist
preacher for 60 years, often reminisced fondly of the many "boys" in
his churches who had received "the call" (in those days this was an
exclusively male group). When he used the definite article with the
word call, we all knew exactly what they had been called to do.
H certain occupations are callings, while other occupations are not,
the appropriate question would be: Is the practice of law within that
category of occupations that can be labeled "callings"? But that is
also not going to be the subject of this paper. In his recent book, The
Lawyer's Calling, Joe Allegretti asserts that is the wrong question. 12
He insists that we should not confer the label of calling on some types
of work and not on others. We are all called to serve God and neighbor with everything that we are and everything that we have and
everything that we do. That includes our work lives as well as our
spiritual lives or religious lives. Any occupation, then, can and should
be a calling, because any job can be an instrument of service to God
and neighbor.
Allegretti discusses how this idea of calling has its roots in the
thought of the Reformers. Both Luther and Calvin insisted that work
in the secular world could and should be considered a calling, no less
than work in the church or the monastery. This Protestant focus on
the Christian's responsibility for and in the world was early noted by
Max Weber in his classic work The Protestant Ethic and The Spirit of
Capitalism,13 in which Weber14 contrasts the otherworldliness of
Dante's Divine Comedy I5 with the this-worldliness of Paradise Lost16
by the Puritan, MiltonP
It is also the case, as Allegretti notes, that the concept of the call of
God in worldly occupations is a prominent feature of modem Catholic
thought. Modem Catholic theology insists on the spiritual significance of work. IS For example, the National Center for the Laity in
Chicago promotes the idea that all lay Christians have vocations in
12. Joseph G. Allegretti, The Lawyer's Calling: Christian Faith and Legal Practice
29 (1996).
13. Max Weber, The Protestant Ethic and The Spirit of Capitalism (Talcott Parsons trans., Charles Scribner's Sons 1958) (1920).
14. See id. at 87-89.
15. Dante Alighieri, The Divine Comedy (John Ciardi trans., The Franklin Library
1977) (1472).
16. John Milton, Paradise Lost (Christopher Ricks ed., Penguin Books 1968)
(1667).
17. See Gilbert Meilander, Professing business: 101m Paul meers 101m Wesley, 113
The Christian Century 1200, 1200 (1996) (reviewing Michael Novak, Business as a
Calling: Work and the Examined Life (1996». It is perhaps no coincidence that
Milton served in the Council of State of Oliver Cromwell's Puritan Commonwealth.
See 24 The New Encyclopedia Brittanica 140 (15th ed. 1994).
18. Allegretti cites Pope John Paul, Laborem Exercens, reprinted in Proclaiming
Justice & Peace: DocUOlents From John XXIII-John Paul II, at 271 (Michael Walsh &
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and to the world. William Droel, under the auspices of the Center,
has written and edited The Spirituality of Work,l9 a series of booklet
length essays on the lay vocations of nurses, teachers, homemakers,
and others, including lawyers.2o Also from a Catholic perspective is
Michael Novak's recent book, Business as a Calling?l which emphasizes that business people are called to do God's work in the world. 22
Indeed, it should not be surprising that the Christian faith emphasizes the call of God in everyday life. In the Hebraic religious traditions, all work should be a calling. That obligation flows directly from
the nature of the God we worship, who commands that "you shall not
have other gods besides me.,,23 As Tom Shaffer has put it: "The religious heritage of Jews and Christians (and Muslims, too, I think) is an
awesome, demanding, put-it-absolutely-first set of habits, propositions, and pressures."24 God will not allow us to serve other Gods
such as money, or power, or status. God demands all of who we are,
not just a part.
SERVING GOD AND NEIGHBOR AS LAWYERS
To summarize, my faith tradition strongly resists the idea that some
occupations are necessarily vocations, while other occupations are
not. All people are called to serve God and neighbor regardless of
their particular work or occupation. The question, therefore, is not
whether the practice of law is a special calling from God that is somehow better than other lines of work. Rather, the better question is:
"Can we serve God and neighbor as lawyers?"
Some would insist that this is an inappropriate question. One version of "professionalism" asserts that one's personal life and one's
professional life must remain separate. According to this view, it is
inappropriate and unprofessional for a lawyer's personal beliefs or attitudes to influence his or her professional behavior. A true professional does the job according to professional standards; personal
Brian Davies, eds., 1984), which speaks of our everyday work as a sharing in the
creative work of God. Allegretti, supra note 12, at 28-29.
19. See generally William Droel, The Spirituality of Work (continuing series of
pamphlets).
20. The connections between faith and daily work have been receiving much more
attention in recent years. The Alban Institute, for example, has published resources
on the subject, including two anthologies, The Calling of the Laity: Vema Dozier's
Anthology (Vema Dozier ed., 1988), and Faith Goes to Work: Reflections from the
Marketplace (Robert Banks ed., 1993).
21. Michael Novak, Business as a Calling: Work and the Examined Life (1996).
22. Id. passim. Although I think Novak is far too sanguine about the creative and
spiritual possibilities inherent in capitalism, this book is nonetheless a salutary effort
at discerning God at work in an arena that liberals like me tend to assume is entirely
Godless.
23. Exodus 20:3.
24. Thomas L. Shaffer, Maybe a Lawyer Can be a Servant; If Not . .. ,27 Tex. Tech
L. Rev. 1345, 1345 (1996).
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beliefs are irrelevant. This might be referred to as "Remains of the
Day" professionalism, after the novel by Kazuo Ishiguro2S (and the
movie version starring Anthony Hopkins and Emma Thompson), in
which the leading character, the butler named Stevens, would not let
his personal feelings intrude on his duties as a butler. Several law
professors have noted the parallels between Stevens's "professionalism" and that of many lawyers.26 Although this view as I have described it is perhaps a caricature, there are, no doubt, many lawyers
who subscribe to at least a mild version of this view.
But this view is difficult if not impossible for Jews and Christians to
maintain. As I have already discussed, we are called to live our faith
in all of our activities and in all aspects of our lives. God cannot be
compartmentalized into the religious sphere of our lives while being
irrelevant in our work lives. We simply cannot relegate our obligations to God and neighbor to the "nonlawyer" parts of our lives.27
A second possible negative response to this question comes at the
question from a very different perspective. I have known people who
assert that a person of faith should not or cannot be a lawyer. In their
view, the legal system is too corrupt and worldly for a Christian to be
able to participate. There is a slightly different version of this idea:
law and other-worldly pursuits are acceptable for some people, but
once one really commits to God the only option is "full time Christian
service,"-having the church as an employer. This is really just a
modem restatement of the medieval view of vocation that the Reformers rejected. Ironically, this is a phrase I have heard more than
once from Protestant clergy when they recount that someone has left
a secular career to go into church work. The view of calling I described above is flatly incompatible \vith this viewpoint.28
I have described two possible negative reactions to the question,
"Can we serve God and neighbor in the practice of law?" Happily,
there are many lawyers who give positive responses to that question.
Recently, I was fortunate to be able to learn this from some outstanding lawyers of faith. The Texas Tech Law Review recently published a
special symposium issue on ''Faith and the Law. "29 For this symposium, my colleague Tom Baker and I solicited personal essays from
25. Kazuo Ishiguro, The Remains of the Day (1988).
26. See, e.g., Rob Atkinson, How the Bwler Was Made To Do It: The Perverted
Professionalism of The Remains of the Day, 105 Yale L J. 177, 18Q.81 (1995); David
Luban, Stevens's Professionalism and Ours, 38 Wm. & Mary L Rev. 297, 298 (1996).
27. To paraphrase a country song performed by Clay Walker, we are called to
serve God and neighbor "only on days that end in 'Y'."
28. John Cromartie has described how he left "ministry" in his work as a lawyer
for the poor to go into ministry within a local church. He insists that each work was
equally a ministry. John L. Cromartie, Jr., Reflections on Vocation, Calling, Spirituality
and Justice, 27 Tex. Tech L. Rev. 1061 (1996).
29. Thomas E. Baker & Tunothy W. Aoyd, A Symposium Precis, 27 Tex. Tech L
Rev. 911 (1996).
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lawyers of faith in which they discussed the intersection of their religious faith and the practice of law.30
Without a doubt, working on the Faith and the Law symposium issue was the most rewarding and encouraging project I have ever been
involved in during my career as a lawyer. All of the authors, to one
degree or another and in very different ways, maintain that the practice of law can be reconciled with their religious faith. Although they
gave very different responses coming from very different perspectives,
this remarkable group of lawyers overwhelmingly concluded that a
lawyer can serve God and neighbor.
The essays illustrate a broad array of different ways lawyers reconcile their work with their faith. One way is to do what Charles DiSalvo has referred to as taking God as your employer. 31 He is
referring to those lawyers who seek a close identity between the
causes and clients they represent and their religious beliefs. A faithful
lawyer can serve God by actively working on God's side. A good example is legal aid lawyers who work full time on behalf of the poor
and the outcast. Another example would be lawyers on both sides of
the criminal bar. I know prosecutors who say that criminal prosecution is the only work they would consider doing, because the prosecutor's task is to seek justice in every case, and not just serve an
individual client's interest. I also know criminal defense lawyers who
see themselves as working on God's side, because without their advocacy their clients will be railroaded by an impersonal system. Finally,
several contributors to the Faith and the Law symposium may come
the closest to literally having God as their employer: they work full
time as a lawyer for a religious organization.
Most of our contributors, however, probably would not say that
their clients or their employer was necessarily on God's side. Most
30. The authors were asked to address how they have reconciled the practice of
law with their faith. They were encouraged to write personal essays, to engage in
story-telling, in the hope that they would inform and perhaps inspire others. We
asked prospective authors to answer such questions as: "What do your religious beliefs teach you about how you should perform your life's work?" "Comparing your
faith life and your professional life, would you describe them as being in harmony or
in conflict?" "How has your faith contributed positively to your career, at times of
crisis and success?" "What advice do you have for someone else attempting to rhyme
a legal career with his or her religious beliefs?" Id.
The forty-four authors were a remarkably diverse group in terms of their practice.
We had lawyers from all sorts of practice specialties, small firm and big firm, prosecution and criminal defense, legal services, judges, legislators, lobbyists, and several attorneys who were no longer practicing. The authors also came from a broad spectrum
of religious traditions. Although a sizable majority were Christian, the roster of authors included persons from the faiths of Judaism, Islam, Buddhism, Hinduism, and
the Baha'ai faith. The Christian authors included many different churches and
denominations.
31. See Charles R. DiSalvo & William L. Droel, Reflections on the Contents of the
Lawyer's Work: Three Models of Spirituality-and Our Struggle With Them, 27 Tex.
Tech L. Rev. 1069, 1073 (1996).
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work in private practice; as a group, they represent a wide variety of
clients in a broad spectrum of subject matter areas. The authors told
many compelling stories as to how faith had shaped their practice as a
lawyer, in many different types of work. Most of our authors emphasized that their faith was relevant, and affirmed that their faith has
made them a better lawyer. Many authors credited their faith for engendering certain qualities-such as honesty, compassion, courage,
humility-that made them better lawyers.32
SHOULD LAWYERS MAINTAIN DISTANCE FROM THEIR
PROFESSIONAL ROLE?
I have already described what a tremendous experience it was to
work with the contributors to the Faith and the Law Symposium. I
learned much and my faith was deepened; I am indebted to those contributors and will remain so for the rest of my career. Yet one aspect
of the essays as a whole was slightly unsettling. A theme in many of
the essays is a concern that the practice of law poses a threat to the
faith. Many authors emphasize that we must be careful that our faith
not be corrupted by the practice of law.
This is a theme that has been argued even more strongly by many
academic commentators on legal ethics. Many academic critics assume that the practice of law is corrupting. They assert that lawyers
should subordinate the "role morality" of the profession to "ordinary"
32. There are many examples: Alan Perry emphasized the importance of forgiveness in the practice of law. He finds the ability to forgive grows out of a living faith in
a God who forgives. Alan W. Perry, lavert or Bebb, 27 Tex. Tech L Rev. 1271. 128384 (1996). Dan Edwards credits faith with helping him love unlovable clients. Dan
Edwards, Reflections on Three Stories: "Practicing" Lall' and Cllristianity at tile Same
Tune, 27 Tex. Tech L. Rev. 1105, 1115 (1996). Monroe Freedman's faith teaches the
sanctity and the dignity of the individual, and provides the basis for a commitment to
zealous advocacy on their behalf. Monroe H. Freedman, Legal Ethics from a lewisII
Perspective, 27 Tex. Tech L. Rev. 1131, 1132 (1996). Azizah al-Hibri's faith taught her
the values of hard work and fairness. Azizah al-Hibri, On Being a Muslim Corporate
Lawyer, 27 Tex. Tech L. Rev. 947, 952 (1996). Tom Porter learns from his institutional
clients and hopes they learn from him "giving and receiving grace." Thomas W.
Porter, Jr., Engaging the Law, 27 Tex. Tech L. Rev. 1285, 1290 (1996). Joe Allegretti
and Nancy Miller-Herron emphasize that faith puts law practice in perspective and in
balance with the rest of their lives. Joseph G. Allegretti, Neitller Curse nor Idol: Towards a Spirituality of Work for Lawyers, 27 Tex. Tech L. Rev. 963. 964-65 (1996);
Nancy Miller-Herron, On Maintaining Spiritual Sanity in a Secular Vocation. 27 Tex.
Tech L. Rev. 1221, 1222 (1996). Tom Shaffer emphasizes the importance of faith communities in providing resources for deliberation. Shaffer, supra note 24. at 1352-54.
Joanne Gross realized that her faith provides a lens through which to see God at work
in seemingly secular events like trials. Joanne Gross, Tile Deliberations of Mortals and
the Grace of God, 27 Tex. Tech L. Rev. 1159 (1996). These few examples do not do
justice to the individuals I have cited; even less do they give a feel for the richness of
stories and insights contained in this volume.
o
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or "common" morality.33 The assumption is that common morality is
inherently superior to the morality of the profession.
Part of the fear of the lawyer's role is that for most of us lawyers,
being a lawyer is a central part of who we are. More so than many
other occupations, being a lawyer tends to take over our lives. Indeed, our work as lawyers is such an important and overwhelming
part of who we are that there is often not much left when we get down
to the "nonlawyer" parts of ourselves.
James Elkins has described the typical lawyer persona and cautioned of the dangers inherent in assuming such a mask. 34 Most of us
have probably noticed how easy it is to identify strangers in airports or
hotels as lawyers based on the way they look and talk. Sometimes
they do not even have to talk to give themselves away: I recently saw
a person walking around the park near my house. He was a good
distance away, and I could not recognize him, yet I had no doubt this
was a lawyer. Something about his bearing gave him away (maybe it
was the starched button-down oxford shirt he wore with his shorts and
sneakers).
Because the lawyer role or persona is so consuming, many wise people have cautioned that we must strive to maintain a healthy and critical distance from our professional role. There is much to be said for
not letting our professional identity entirely take over who we are.
There certainly ought to be more to us than being a lawyer.
I used to believe quite strongly that maintaining distance from our
professional roles was essential, but I am no longer so sure that critical
distance from our professional role is healthy or productive. To explain why I have changed my mind about this, I need to describe
changes in my thinking about ethics.
I used to be a philosophical liberal on issues of morality. I suspect I
shared that perspective with most Americans of my generation. I am
relatively certain that it is the perspective of most lawyers. What do I
mean by philosophical liberalism? At least in my case, it meant that
the following were critical: the importance of individual autonomy,
the need to question claims of authority, the importance of reasoning
to the right choice when faced with an ethical dilemma, and the need
for rules to guide and constrain behavior. I viewed individual autonomy as of paramount importance in ethics because I was skeptical of
claims of authority, whether from groups, individuals, or appeal to tradition. Accordingly, I did not believe that our moral autonomy should
33. One of the leading exponents of this point of view is David Luban. See David
Luban, Lawyers and Justice: An Ethical Study (1988). Luban's views are much
broader and more nuanced than this brief description, but he is perhaps the leading
spokesperson for the view that role morality must be judged by the standards of "ordinary morality."
34. See James R. Elkins, The Legal Persona: An Essay on the Professional Mask,
64 Va. L. Rev. 735 (1978).
0',
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be compromised by adherence to some traditionally defined or socially imposed role.
In my case, this philosophical liberalism was reinforced by theological views. Paul Tillich's "Protestant principle" asserts that only God is
God; as a result, we should view with skepticism any claims to authority, whether by individuals, institutions, or traditions.3S From Reinhold Niebuhr I learned that all individuals and institutions are a good
deal less than perfect.36 Thus, I maintained what I believed to be a
healthy skepticism toward tradition and authority in ethics. I was likewise suspicious of reliance upon character and virtue. I suspected that
claims of virtue and character masked elitism and hypocrisy, sexism
and racism.
Over the past few years, I have come to view morality very differently than I did before. I have come to realize that ethics is about
what kind of life we will live. That is the important question for ethics.
Living life well consists of much more than dealing with dilemmas or
quandaries or thinking our way through to the best choice when faced
with a problem.37
Any view of ethics that focuses on the goal of a life well lived necessarily owes much to the ethics of Aristotle. And indeed, I would describe my current view of ethics as Aristotelian. There are many
ramifications of this perspective:
• Character is more important than reasoned decision-making.
• VIrtues and good habits are more important than knowing and following rules.
• Community is at least as important as individualism; good character
and virtue can only be fostered in a supportive community.
• Narrative is more important than logic or theory. We all live in
accordance ,vith a story; learning and telling the right stories is
therefore crucial.
• Our lives must be viewed as a unity; it is a mistake to separate our
lives into separate roles.
• We learn morality primarily by example, from role models; it is
therefore crucial to have good role models.
• Moral motivation is more important than moral reasoning or moral
knowledge.
35. For a discussion of Paul Tillich's philosophy referred to as the "Protestant
principle," see, for example, \Villiam Hordem, A Layman's Guide to Protestant Theology 178-79 (rev. ed. 1955).
36. See Reinhold Niebuhr, The Nature and Destiny of Man (Charles Scribner's
Sons 1949) (printing in one volume Niebuhr's first and second series of Gifford Lectures, 1. Human Nature, and II. Human Destiny).
37. See Edmund Pincoffs, Quandary Ethics, in Revisions: Changing Perspectives
in Moral Philosophy 92, 93 (Stanley Hauenvas & Asadair Macintyre, eds., 1983).
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Why did I change my perspective on ethics so radically? In part, I
became convinced by my reading of the moral philosopher Alasdair
MacIntyre and the theologian Stanley Hauerwas that liberalism provides an inadequate, if not impoverished, view of the moral life.38 I
am also indebted to Tom Shaffer and Jack Sammons for applying the
ideas of MacIntyre and Hauerwas to legal ethics. 39
My work as a teacher of legal ethics, and as a participant in the
lawyer disciplinary system in Texas,4o has probably played an even
larger role in this turnabout in my thinking. Most of the problems
that get lawyers in trouble are not due to ignorance of the Rules of
Professional Conduct. The biggest single problem faced by the lawyer
disciplinary system is neglect of a client's business. Laziness and neglect get lawyers in trouble far more often than poor moral reasoning.
As Bob Dylan puts the matter: "People don't do what they say they
believe; they just do what's convenient, and then they repent."41 As a
teacher of legal ethics, I have become convinced that the crucial question is: When crunch time comes, how can we ensure that lawyers will
do the right thing? The Aristotelian answer is character.
One other factor has undoubtedly played a role in this change. As
parents, my wife and I have the greatest responsibility for the teaching
of ethics that people can have. In that role, I have learned most
clearly that character, virtue, habits, narrative, and community are essential in raising our children to live the best lives they can.
THE PRACTICE OF LAW AS A CHARACTER-BUILDING ACTIVITY
Now, with that intellectual odyssey as background, let me explain
why I no longer think that maintaining distance from our professional
role is a good idea. Our moral life must be a unity. We cannot separate ourselves into personal roles and work roles and community roles
38. See, e.g., Stanley Hauerwas, A Community of Character: Toward a Constructive Christian Social Ethic 72-89 (1981) (challenging the common assumption by contemporary Christians that secular liberalism is compatible with their Christian
beliefs); Alasdair MacIntyre, After Virtue: A Study in Moral Theory 241 (1981)
[hereinafter MacIntyre, After Virtue] (arguing that "in spite of the efforts of three
centuries of moral philosophy and one of sociology, [there is stilI no] coherent and
rationally defensible statement of a liberal individualist point of view"); Alasdair
MacIntyre, Whose Justice? Which Rationality? passim (1988) (asserting that incompatible conceptions of justice are characteristically closely linked to different and incompatible conceptions of practical rationality, and explaining the connection
between justice and laws).
39. See Jack L. Sammons, The Professionalism Movement: The Problems Defined,
7 Notre Dame J.L. Ethics & Pub. Pol'y. 269 (1993); Thomas L. Shaffer, On Being a
Professional Elder, 62 Notre Dame L. Rev. 624 (1987). Jefferson Powell has applied
the insights of MacIntyre to the American constitutional tradition. See H. Jefferson
Powell, The Moral Tradition of American Constitutionalism: A Theological Interpretation (1993).
40. I serve as Chair of the Texas Supreme Court Grievance Oversight Committee.
41. Bob Dylan, Brownsville Girl, on Bob Dylan's Greatest Hits Vol. 3 (Columbia
1994).
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and family roles. Like Atticus Fmch, we must be the same person in
town that we are at home. 42 That is not just a normative claim about
consistency; that is an empirical claim. We simply cannot be different
people in one role than we are in our other roles.
Therefore, it is bad news indeed if law practice is a corrupting infiuence on us. Indeed, it is far more dangerous under my Aristotelian
view than it would be if liberalism was an accurate description of our
moral lives. According to Aristotle, we become what we habitually
do. If the practice of law is a threat to faithful and healthy living, I
fear that it will ultimately corrupt us no matter how much we remain
on guard to protect our "true" selves. We have no true self other than
the one who is also a lawyer.
Given my Aristotelian view of ethics, I want to believe that being a
good lawyer makes one a better person. I want to believe that one
cannot be a bad person and a good lawyer, or, for those who do practice law, you cannot be a good person if you are a bad lawyer. I want
to believe that the practice of law itself is supportive of virtue and is
formative of good character. This is especially important to me because I am not just a lawyer, I am also a producer of lawyers.
To return to the topic of this paper, I have stated that "calling" requires that we serve God and neighbor in all that we do. In order to
view the practice of law as a calling, it is not enough to believe that it
is possible, every now and then, to do some good in the world as lawyers. No, if the practice of law is a calling, the practice itself must be
character building. The practice of law should equip us to better serve
God and neighbor. Another way of stating this is to ask: "Are we
better people for being lawyers?" If the practice of law is truly a calling, we must be able to answer that question "Yes." Of course, it is
one thing to want to answer that question "Yes"; it is another thing in
fact and in truth to answer the question "Yes." My rather bold claim
is that lawyering can make us better people. In fact, if done well,
practicing law \vill inevitably make us better people.
Ray Goff was fired as head coach of the University of Georgia football team at the end of the 1995 season. I saw him interviewed on
television not long after he was fired. He stated that the most important thing for him as a coach was to know that the young people he
coached were better people when they left than when they enrolled.43
That is what I want to be able to say about law school: our graduates
are better people for having completed our program. More impor42. See Harper Lee, To Kill a Mockingbird (1960).
43. I am not suggesting that we take major college and professional sports as our
models. I know that major college sports are shot full of corruption. and coaches' talk
about character-building is often self-serving cant. Ray Goff was fired because he did
not win enough football games, regardless of the effect he may have had on his players' character. From what little I know of Ray Goff, however, I do believe he was
sincere about character building.
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tantly, that is what all lawyers should all be able to say after a career
at the bar.
Now I know this flies in the face of conventional wisdom, especially
among academic lawyers. The very question about lawyering improving character probably sounds odd to most people. Most people assume that you are either a good person or you are not long before you
ever become a lawyer.
I have recently received a good dose of this type of thinking in some
work I did with the State Bar of Texas. The professionalism committee on which I serve has met several times recently with the deans of
the nine law schools in our state to discuss issues relating to improving
the ethics and professionalism of new lawyers. The deans have been
quite insistent that although law schools can teach knowledge of the
rules governing lawyers' conduct, we should not expect law school to
have an effect on law students' character. The deans used phrases to
the effect of "our students' ethics are pretty much set in stone before
we get them," and "the ethical die is cast long before students enter
law school." Of course, the deans are philosophical liberals. Questions of character are mysterious and even embarrassing to most modem, liberal people. To be sure, there are sound historical reasons for
this unease.
But the truth is, lawyering does shape us. As noted above, it is a
large part of who we are. I know that I am a different person in many
ways (some better, some worse) since I began law school twenty years
ago. That is why many people emphasize keeping your "true self'
from becoming corrupted by being a lawyer. Law schools have traditionally taken responsibility for and pride in shaping our students intellectually. It is time that we recognized that we also affect the
character of law students. Unfortunately, that effect is not always for
the better. John Mixon and Robert Schuwerk have recently reviewed
the literature and the research on the destructive effects of legal education on law students.44 In light of that, perhaps I should not be so
concerned with legal education improving the character of our students. Maybe we law teachers should take the Hippocratic oath:
First, do no harm.
How
"PRACTICE" CAN SUPPORT AND SUSTAIN VIRTUES
I realize that I need to justify my claim that the practice of law can
make us better people. For that purpose, I will rely upon the work of
Alasdair MacIntyre, who is a leading proponent of an ethic of character and of virtue, and of recovering the insights of Aristotle. 1\vo concepts that are central to his thought are "practices" and "virtues." I
44. See John Mixon & Robert P. Schuwerk, The Personal Dimension of Professional Responsibility, 58 Law & Contemp. Probs. 87 (1995).
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want to focus on both of those concepts in exploring how being a lawyer is a way of living a good life.
MacIntyre gives both of these terms-practice and virtue-rather
technical meanings; and the two terms are dependent upon each
other. In fact, virtues are defined in terms of practices. VIrtues are
developed and sustained within practices. 4S He goes on to define a
practice as follows:
[A]ny coherent and complex form of socially established cooperative human activity through which goods internal to that form of
activity are realized in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive
of, that form of activity, with the result that human powers to
achieve excellence, and human conceptions of the ends and goods
involved, are systematically extended.46
He gives examples of practices: playing tic-tac-toe is not a practice,
but playing chess is. Planting turnips is not a practice, but farming is.
Indeed, the range of practices is quite wide; it includes arts, sciences,
games, politics in the Aristotelian sense, and the making and sustaining of family life.
A crucial part of the definition of a practice is the distinction between internal and external goods. To illustrate the distinction,
MacIntyre uses the game of chess. The internal goods are those that
can only come from within the practice-things like the achievement
of a certain highly particular kind of analytical skill, strategic imagination, and competitive intensity, and a new set of reasons for trying to
excel in whatever way the game of chess demands. Internal goods
cannot be had in any way but by playing the game; they are learned
from the masters, from those who have preceded them in the practice.
Internal goods can also be recognized only by the experience of participating in the practice in question. Those without such experience
are incompetent as judges of internal goods.
On the other hand, external goods are externally and contingently
attached to chess-playing and other practices by the accidents of social
circumstances. These include such goods as prestige, status, and
money. There are always other ways to achieve ex1ernal goods, and
their achievement is never to be had only by engaging in some particular kind of practice. Now, external goods are not necessarily bad;
after all, they are "goods." But for a practice, external goods are always potentially corrupting. To use the chess example once more, for
a player who is motivated solely by external goods, there is no good
45. The "notion of a particular type of practice as providing the arena in which
the virtues are exhibited and in terms of which they are to receive their primary, if
incomplete, definition is crucial to the whole enterprise of identifying a core concept
of the virtues." MacIntyre, After Virtue, supra note 38, at 175.
46. [d.
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reason not to cheat. The internal goods of chess, however, cannot be
realized by cheating.
With that background, MacIntyre asserts that virtues are those
human qualities that enable us to achieve the internal goods of practices. 47 Different practices require and foster different virtues; but
MacIntyre does assert that any practice with internal goods and standards of excellence requires at the least the virtues of justice, courage,
and honesty.
MacIntyre is concerned to show that virtues are much more than
qualities that sustain practices. His view of morality insists that a
human life should be envisaged as a whole. A virtue is not, therefore,
a disposition that makes for success in only one type of situation.
MacIntyre is quite critical of the modern tendency to separate ourselves into separate and distinct roles. In this connection he distinguishes virtues from professional skills, which are deployed only in
those situations where they can be effective.
Virtues are not to be evaluated in terms of how effective they make
us in particular situations; virtues are necessary for us to live life well.
As MacIntyre puts it, virtues "sustain us in the relevant kind of quest
for the good, by enabling us to overcome the harms, dangers, temptations, and distractions that we encounter, and which will furnish us
with increasing self-knowledge and increasing knowledge of the
good."48
Two other MacIntyrean concepts are important to my argument:
narrative and tradition. As noted above, he emphasizes that our lives
must be viewed as a whole. The self must be envisaged in the unity of
a narrative "which links birth to life to death as narrative beginning to
middle to end.,,49 Likewise, our individual narratives are a part of
larger stories. And our practices are themselves embedded in an
ongoing tradition. All practices are necessarily historical.
Liberalism has always been quite suspicious of tradition, primarily
on the ground that tradition tends to freeze our ideas and relationships in the past. Many people point to the gains made in freedom
and equality in modern times, and assume that adherence to tradition
stands in the way of such progress. We should be skeptical of a blind
adherence to a static tradition.
But it is crucial to recognize the dynamic nature of traditions. According to MacIntyre, traditions are essentially argumentative in nature. A tradition is never frozen in time; it is a historically extended,
socially embodied argument about the nature of the goods that constitute that tradition. Traditions are always changing; they continue a
47. "A virtue is an acquired human quality the possession and exercise of which
tends to enable us to achieve those goods which are internal to practices and the lack
of which effectively prevents us from achieving any such goods." Id. at 178.
48. Id. at 204.
49. [d. at 191.
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not yet completed narrative. To survive, a tradition must grasp future
possibilities. Sometimes traditions decay, disintegrate, and disappear.
The key to a tradition surviving and even flourishing is the exercise of
the virtues.50
THE PRACTICE OF LAW AS A "PRAcrICE"
My defense of the practice of law as a means of fostering virtue, of
making its practitioners better people, is dependent upon the practice
of law being a "practice" as MacIntyre uses that term.S1 In particular,
I will rely upon the concepts of "internal goods" and of virtues.
The prism through which I want to look at internal goods and virtues in the practice of law is the Professionalism Movement. Jack
Sammons has given us a brief history and summary of this movement.52 That history includes the ABA's Commission on Professionalism and its 1986 Stanley Report;53 numerous state supreme court
and state bar commissions and committees on professionalism, and a
proliferation of professionalism creeds, aspirational statements, and
codes of civility. Most recently, the Professionalism Committee of the
ABA Section on Legal Education has issued a Report recommending
fundamental changes in the education and socialization of lawyers in
order to increase the level of professionalism. 54
The Professionalism Movement has struck a chord with many lawyers and judges, and it shows no signs of going away. Of course there
is a fair measure of self-congratulation, hypocrisy, and false nostalgia
in the repeated calls for an increase in professionalism. But I am convinced that the movement has much value. I base that largely upon
my own experiences with lawyers who are committed to
"professionalism."
In MacIntyre's terms, I believe the movement has been trying to
focus the profession toward the internal goods of the practice.
Although they do not use MacIntyre's terminology, the advocates of
50. Id. at 207.
51. Many would say that the profession is too large and heterogeneous to constitute a MacIntyrean practice. The modem American legal profession is made up of
many diverse people doing widely different work. In fact, it is much more diverse in
terms of people and in terms of types of work than it was even a generation ago. It
should be obvious that this increased diversity is a very good thing. Increased diversity does not necessarily mean that the profession cannot be a "practice." Indeed, if
we look carefully at MacIntyre's definition of a "practice," law practice fits very comfortably within the definition.
52. See Sammons, supra note 39. My understanding and description of the movement is largely derivative of that of Sammons. In fact, my understanding of the moral
value of the practice of law is largely a restatement of what Jack Sammons has been
saying for years.
53. See ABA Comm. on Professionalism, ..... In the Spirit of Public Senice": A
Blueprint for Rekindling of Lawyer Professionalism (1986).
54. See ABA Professionalism Comm., Teaching and Learning Professionalism
(1996).
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professionalism are concerned that external goods have come to dominate the practice.
This can be seen in the two most prominent themes of the Professionalism Movement. The first theme is anti-commercialism. Most
commonly, this is phrased as a complaint that the practice of law has
become a "business." To some extent, these complaints are misplaced. In the first place, this complaint is unnecessarily harsh toward
business. 55 In the second place, lawyers have always been in business,
and they have traditionally been paid well for their services. Finally,
advertising and increased competition (two targets of the movement)
are not bad in themselves; they can be a good thing for consumers of
legal services.
Having said that, there is much good to be said about this "anticommercialism" strand of the Professionalism Movement. Although
they do not always say it as clearly as they should, lawyers who complain about commercialism have legitimate fears. They fear that external goods have replaced internal goods in the practice.56 They are
concerned that the desire for external goods, such as money, prestige,
and winning at all costs, is driving out the internal goods, those goods
that lead to excellence in the practice.
A second theme of the Professionalism Movement is an emphasis
on "civility." At a minimum, civility implies that we can disagree
without being rude or deliberately harassing of those on the other side
of a lawsuit.57 More importantly, however, the call for civility is also a
plea to stress the internal goods of the practice as opposed to the external goods. It is the nature of internal goods of a practice, the goods
that lead to excellence in the practice, that they are not zero-sum.
That is, everyone involved in the practice has an interest in seeing the
internal goods increase. There are very good reasons to be civil to
fellow members of your practice, if you seek internal goods of the
practice. That is not true of external goods. If you seek only the external goods of fame, fortune, or victory at all costs, there is no good
reason for being civil-or even for not cheating.
The Professionalism Movement is a controversial place for me to
take a stand. It has been roundly criticized by legal academicians, including some of the very best thinkers and writers on legal ethics. 58
55. Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal
Profession Is Transfonning American Society 70-71 (1994).
56. The truth is, some lawyers do make too much money. I sometimes think our
biggest problem as a profession is that we keep wanting bigger barns and more grain.
See Luke 12:13-2l.
57. M. Scott Peck's latest book, A World Waiting to Be Born: Civility Rediscovered (1993), contains an excellent discussion not only of civility, but also of vocation. See id. at 61-79.
58. To take only the three best critical discussions of professionalism by legal
ethicists, see Rob Atkinson, A Dissenter's Commentary on the Professionalism CT/lsade, 74 Tex. L. Rev. 259 (1995); Russell G. Pearce, The Professionalism Paradigm
Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputa-
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Most academic lawyers who have written about the Professionalism
Movement have been highly critical. I think the main problem is that
they misperceive the nature of the movement. The advocates of professionalism are interested in character and virtue; they are groping
toward recovering the internal goods of the profession.59 The themes
emphasized by the Professionalism Movement-the criticism of commercialism and of incivility-do not make sense if they are seen as
rules. Anti-commercialism is not and cannot be a rule governing lawyer's conduct, and civility likewise cannot and should not be enforced
as a rule applicable in all circumstances. Rather, the Professionalism
Movement is struggling toward a rediscovery of the need for character
and virtue as the foundations of legal ethics.
LAWYERS' VIRTUES
My main reason for claiming that the practice of law is a "practice"
is that, at its best, lawyering does engender certain virtues and is itself
sustained by those virtues. What are those lawyerly virtues? I will
name four such virtues. It so happens that the four virtues I will discuss are the most important virtues. The four cardinal virtues from
medieval thought, the virtues on which the others all hinge, are prudence, temperance, fortitude, and justice. The practice of law, when
done well and done right, fosters and is sustained by each of these
virtues.60
(1) Prudence (or practical wisdom)
This virtue is essential for that old and honorable title lawyers
claim, "counselor." Practical wisdom is the quality clients need
and expect most of all in a counselor. Mary Ann Glendon and
Anthony Kronman have recently written important books
about lawyering; both emphasize the importance of practical
wisdom.61
(2) Temperance (self-control)
The practice needs this virtue among its practitioners. We lawyers are proud of the fact that we are a self-regulating profession. As a practical matter, however, our conduct goes largely
unregulated. Excesses of zeal and combativeness seldom lead
tion ofthe Bar, 70 N.Y.U. L. Rev. 1229 (1995); and Thomas L Shaffer, Lawyer Professionalism as a Moral Argument, 26 Gonz. L. Rev. 393 (1990-1991).
59. I think Jack SaDlIDons has it about right. "I believe that the Professionalism
Movement is doing what should be done as best as we now know how to do it even
with all its lurching and stumbling." SaDlIDons, supra note 39, at 275.
60. I can only very briefly suggest here how the practice of law at its best develops
each of these cardinal virtues. The qualifier "at its best" is crucial. Of course there
are many lawyers who do not exhibit the virtues 1 describe here. My point is to describe a professional ideal. Lawyers should emulate those lawyers who have achieved
excellence in the practice of law. To do that, we need more discussions about what
constitutes excellence in the practice.
61. Glendon, supra note 55; Anthony Kronman, The Lost Lawyer (1993).
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to sanction. Instead, the profession necessarily relies upon the
self-control of each member. At its best, the practice of law
encourages and fosters the kind of self-control that allows lawyers to be independent of outside regulation.
(3) Fortitude (courage)
It is an essential feature of good lawyering that lawyers must
often have the courage to do what is contrary to their own selfinterest. It takes fortitude to tum down a lucrative new client
because of a conflict of interest with a current client. Sometimes lawyers must even face the hostility of others. It took
courage for John Adams to represent the British soldiers. It
took courage for Thurgood Marshall to travel the backroads of
the South and appear before hostile courtrooms in the effort to
desegregate the schools.
(4) Justice
This is the fundamental lawyerly virtue. A professional should
have some idea or quality to profess. For our profession, that
idea is preeminently justice. Ideally, the practice of law fosters
and encourages justice. Conversely, the practice of law cannot
long sustain itself if lawyers do not possess a thirst for justice.62
But what precisely does the practice of law have to do with justice?
Is justice the stuff of the everyday practice of law? Most accounts that
attempt to reconcile the practice of law and justice do so only externally. That is, a lawyer is morally justified as a lawyer if she represents
just clients or just causes. Or another way of seeking external justification is to believe that the legal system as a whole produces justice,
so that each cog in the machine may be said to be contributing to
justice.
I am convinced that we must see justice as the cornerstone of the
everyday pursuit of our calling. But we lawyers do not achieve justice
in the liberal way of abstractions-of reasoning our way to rational
solutions. Ideally, we achieve justice by doing our job, by performing
our role. And that job is representing clients. Lawyers help clients in
the prevention and resolution of disputes. That is done most often
through wise counseling, and through effective advocacy when
necessary.
In legal terms, lawyers owe fiduciary duties to their clients, duties
which entail the utmost in loyalty and good faith. Joe Allegretti has
described the fruitfulness of the concept of covenant for lawyer/client
relations. 63 At its best, the lawyer's relationship with his or her client
62. Although I am a defender of the Professionalism Movement, I believe the
movement is weak in the area of promoting and achieving justice. Critics often point
out that the very term "professionalism" is devoid of meaning. This is where the
Professionalism Movement needs to focus: more attention should be paid to issues of
justice. This must include issues of legal services to the poor.
63. See Joseph Allegretti, Lawyers, Clients, and Covenant: A Religiolls Perspective
on Legal Practice and Ethics, 66 Fordham L. Rev. 1101 (1998). He draws upon Wil-
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can be one of openness, trust, and enduring faithfulness. Those are
precisely the kind of relationships God calls us to in all of life.
Although loyalty is the cornerstone of lawyers' relationships with
their clients, the lawyer's duty of loyalty has taken a beating from academic and lay critics. Lawyers are criticized for being hired guns, for
taking immoral actions on behalf of their clients, and for turning a
blind eye on client misdeeds. Much of the criticism is valid; for example, I probably need only say the name Kaye Scholer to reference
some of that criticism. Nonetheless, loyalty is a fundamental attribute
of all good lawyers. But the duty of loyalty must be disengaged from
its "hired gun" caricature. The lawyerly virtue of loyalty is analogous
to a fundamental biblical concept. A central idea of both the Hebrew
scriptures and of the New Testament is covenant. God is portrayed as
being in covenant with God's people. God remains steadfast in loyalty to the people, even when they do not remain faithful. 64 The Hebrew word used to describe that divine attribute, "khesed," is usually
translated into English versions of the Bible as "steadfast love"
(although the King James version usually translated it as "mercy").6S
The word contains the ideas of devotion, loyalty, and covenant
faithfulness.
That is the kind of loyalty that lawyers should strive to develop.66
Note that this is anything but blind loyalty. God continually calls us to
account when we fall short and fail to do God's will, but God ultimately remains faithful within the covenant relationship, no matter
how faithless we are.
Tied closely to the idea of loyalty is the concept of advocacy. To be
an "advocate" literally means to be "called to" the side of someone
who is in need of help. Considered as rule or as an obligation under
all circumstances, zealous advocacy can certainly lead to untenable results. But considered as a virtue, as a necessary step to attaining excellence, loyalty to someone in trouble-someone in need of an
advocate-ean be a calling from God.
GOD IN THE MIDST OF LAWYERING
Ultimately, I am claiming that the practice of law, at its best, is character building-that it fosters the development of virtue in its practitioners. From my faith perspective, that is simply another way of
liam May's discussion of covenant in the doctor/patient relationship. Id. at 1114-15
(citing William F. May, The Physician's Covenant: Images of the Healer in Medical
Ethics (1983».
64. Perhaps the best description is by the prophet Hosea, who compares Israel to
a faithless spouse, yet God remains steadfast in his love. Hosea 1:1-3
65. See The HarperCollins Bible Dictionary 627-68 (1996) (defining "Io\ing-kindness" as derived from the Hebrew word "kJlesed," and listing other translations of
"khesed," such as "steadfast love" and "mercy").
66. I realize it is dangerous to suggest to lawyers that they should be like God; for
too many, the distinction is blurred already!
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saying that through the practice of law we can become persons who
better serve God and neighbor. For that reason, the practice of law
can be a calling.
I must make clear that I am not assuming some given or static conception of lawyering. Rather, what we need are fresh ways of looking
at and discussing what is good in the practice of law. As a profession,
we must discuss together what is good lawyering, and what is not. We
need to support each other in our work as lawyers. We must tell stories about lawyers and lawyering that instruct and inspire. We must
hold up role models and heroes to emulate.
I realize that I am painting an idealized picture of law practice. But
we need to find the best picture of law practice that we can, and then
we need to live in it. We need to argue about excellence, about what
is right and just. The alternative is to be cynical and find not much
good in it. That, I have already argued, is a recipe for disaster.
I also realize that many may find it odd that I would expect the
world of law practice to be capable of engendering good character.
The professional world of lawyers is complex and morally ambiguous
at best; some would even say that it has become a mean and nasty
world. But is the world of law practice really any different, in this
respect, from life in general? Saint Paul said we must be in the world
but not of the world. If we are going to live our lives well, to be faithful to God's will, it will always be in the midst of complexity and
downright evil.
My biggest concern in pointing to the positive aspects of the practice of law is that I run the risk of idolatry; that is, of putting my faith
in the profession, or a system, or in a group of people, rather than in
God. Idolatry is always a lurking danger. It stems from a lack of
faith, of trust, in God. Because we place our faith in an unseen God,
faith must always be risked. Our desire for certainty leads us to put
our trust in visible or tangible things; that is the root cause for
idolatry.
Our trust and faith must be in God, and not in the world of law and
lawyering. But because we are always accountable to God, what we
do in our lives, and especially in our relationships with others, is always of ultimate and infinite importance. That necessarily means that
the work we do as lawyers is also of infinite importance. We cannot
be certain that practicing law can be the redeeming force for good and
for justice that I am claiming. But we can have confidence in the God
who created, judges, and redeems all things; that God can and will
redeem us and our fallen world of law practice.
God is in the midst of all that we do as lawyers. The world of law
practice-no less than any other place in God's creation-is a sacred
place. God constantly calls us to serve God and our neighbors
through our work as lawyers, and through that work to become the
best people we can be.
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